1.1 Do you follow parliamentary meetings
1.2 Do you follow cabinet meetings
1.3 Do you get involved in public consultations
1.4 Do you have awareness of any recent initiatives or policies of government for economic and social development
1.5 Do you take part in non-governmental organization (NGO) activity

Section 2 – Familiarity with Government Representatives
2.1 Name the President
2 .2 Name the Prime Minister
2.3 Name the leader of a political party
2.4 Name at least one governor or chief minister of a province.
2.5 Name at least one Member of Parliament representing a constituency other than your own.

Section 3 – Knowledge about Government Affairs
3.1 Do you have easy access to your parliamentarian, mayor, councillor, mayor or local representative.
3.2 Can you access government policies and programmes via the government website
3.3 Do you have access to budget information
3.4 Do you have access to information about salary paid to government officials and parliamentarians
3.5 Can you access reports of national public commissions or authorities issued on specific issues

Section 4 – Overall Satisfaction with Government Services
4.1 Satisfied with supply of electric, gas, drinking water and waste collection services
4.2 Satisfied with supply of essential commodities and services
4.3 Satisfied with education facilities
4.4 Satisfied with health facilities
4.5 Satisfied with transport system and roads and railroads

Section 5 – Influence on Government
5.1 Can you influence government policy through legally provided participatory processes.
5.2 Are you free to disagree with government policy without fear of reprisal?
5.3 Can you freely assess government performance without political pressure?
5.4 Do you enjoy freedom of religion, gender, association and expression?
5.5 Do you have any restriction on your movement, property or finances?

Score Key: Each of the above five sections has 5 self-assessment questions. Each affirmative question scores 4 marks. If your answer draws a blank award yourself a zero. Total score over 50 marks means you are politically aware and making your vote go far to keep an eye on the government you have elected to power. However, a zero score to all questions in any section impacts negatively on the overall result and requires subtracting 20 marks from the grand total. Good luck with the test.

Contrary to Government’s assessment that the PTI and PAT public protest in Islamabad which started in August 2014 would have limited shelf-life and will not last beyond a few weeks, the Islamabad dharna – literal meaning in Urdu – stay put – has continued to attract the people and become a family affair beyond the voices of angry young men. If the growing interest in the daily speeches of Imran Khan and Tahirul Qardi are any guide, the protesters do not seem to be going away any soon despite the hot sunny days and monsoon rains of the last two months and the soon-to-come wintery nights of October. Media channels which compete with each other to replace old news with new headlines discovered to their surprise that the most watched channels by Pakistanis in the last few weeks were not entertainment programmes but news channels providing daily coverage to the dharna. Even housewives seem to have forsaken their favourite TV soaps to watch the happenings around the neighbourhood of Islamabad D-Chowk and Blue area on a daily basis. And now the protest is reaching to other cities and is covered live on You Tube, Whats Up, Twitter, Facebook, Flickr and Pinterest by its supporters and critics.
No one in his wildest dreams imagined that soon after the protesters reached Islamabad last August, the Prime Minister will pack up and leave Islamabad and agree to resign from his position, as demanded by PTI and PAT supporters. True that there were a few days in the early phase of the dharna when the role of the armed forces was not clear and the Government suspected the usual trick, namely the third force to usurp its democratic authority. However, after the armed forces made it clear that it was not their business to clean up the mess politicians had made, the Government knew for sure that the dharna will not be able to shake its writ and legitimate authority to govern until the next general election mandated by the constitution.
Despite this reassured position, the Government lost political ground considerably from where it stood in July when the dharna was still in the offing. All the steps it took to address the protest backfired on itself. Events went in favour of PTI and PAT instead of reinforcing the position of the government. The coming together of the main opposition PPP under the already discredited former President did not help build the image of the Prime Minister who was seen dining and feasting his political rival in Lahore and reasserting his legitimate right to govern as the elected prime minister of the country. A major concession granted by Prime Minister Nawaz Sharif to PTI by establishing a judicial commission to inquire into Imran Khan’s allegations of rigging of 2013 general election was much too late to call off the dharna. The initiative was badly timed and was handled unwisely by the Prime Minister. Even the terms of reference of the commission drafted by the law secretary left much to be desired.

A joint session of parliament convened by the Government to address the points raised by Imran Khan and to a lesser extent by Tahir ul Qadri lingered on for days but regrettably failed to address the main issue. It offered no solution beyond asserting the authority of the parliament as the representative institution of the people. The joint session also ironically exposed the intellectual level of the honourable members of this august house who were watched live by the people of Pakistan fighting their petty battles, making street-wise statements and raising points of order like students in a special measures public school. Barring a few notable exceptions worth admiring, most of the speeches avoided the real issue and kept repeating the known positions of their parties. The joint session confirmed the negative public impression that the people’s representatives are nothing more than the guardians of their own personal egos and party interests in the name of parliamentary sovereignty and public service.
The dharna also took political parties by surprise. The fast momentum of the dharna gave them not enough time to define their respective stand. MQM which is a party of ordinary hard working people could not align itself with PTI despite the fact that both parties challenge the class-based status quo of the country’s decadent political leaders. Both MQM and PTI want to bring a democracy that serves the interests of people instead of their masters. PAT and PTI also could not articulate the terms of their co-habitation despite being parallel strands of similar, if not the same revolutionary movement and ideology. JI which is a coalition partner of PTI in KPK province decided to remain neutral and impartial and even took the role of a mediator between the Government and its KPK ally. The official opposition PPP played a good-cop bad-cop role. On the one hand, PPP leaders of the opposition in the house and senate continued to criticise the Government for the irresponsible and laid back manner in which they handled the crisis from the beginning of the protest, following the Model Town killings in Lahore, till the squatting of PTI and PAT supporters on the Constitutional Avenue in Islamabad. The PPP Don, Mr Asif Zardari and his former Interior Minister Rahman Malik, on the other hand, adopted the good-cop role and threw their weight on the side of the Prime Minister and the Government assuring their support for the continuation of democracy and the present status quo.
The judiciary which has luckily stayed out of any political controversy and is seen as a credible arbiter decided not to use its authority to take suo-motto notice of the situation and give a ruling that could satisfy all concerned in a manner that was within the confines of the constitution and the demands of the protesters. It was surprising that given its record of suo motto notices in the past on small issues, the Supreme Court decided, much like the armed forces that it will not intervene and leave the politicians to clean the mess they have created themselves.
The President, being the commander of the armed forces, a symbol of the federation and an authority that sits as the head of state of the republic was in an ideal position to intervene and mediate between the concerned political actors. However, the President did not stand up to the occasion and did not prove the worth of his coveted high office. To add insult to injury, his Governors in Punjab and Sindh were more visible trying to do something about the crisis even though they are not constitutionally mandated to play this role as supporters of the government in the absence of the President’s initiative to whom they report and represent in their respective provinces.
Negotiations carried out on various tracks for a resolution of the crisis lacked legitimacy and produced confusion but not results. At first the Government did not take PTI and PAT leaders seriously. Then it welcomed the efforts made by JI. Then a government mediation committee was formed in which the Governor of Punjab was also included although he is not represented in the Parliament. Then came the Jirga of Mr Rahman Malik who claimed that his mediation was the most successful and soon people will hear the good news of reconciliation. Finally, it all came to nothing. This shows that either the Government did not take the dialogue seriously or was mislaid by the Sherpas in the political parties who wanted to take credit for their own mediation initiatives. Mr Rahman Malik’s enthusiasm to jump in a row which was initially not PPP’s but was between PML-N and PTI is a clear evidence of this failed approach.
The above answers the question why the Islamabad dharna has not gone away. But more importantly, there are three main reasons for its success: the dharna leaders are speaking the language of the people and they are loving it; the dharna has given people a social platform to get out of their cramped homes every evening and celebrate culture in a country that has no entertainment, no sponsorship of sports and no theatre for the ordinary folks; and the protest has baffled the Government as to what to do next because force has not worked and its benign neglect is being misinterpreted by many as its weakness to act. The Government has also failed to give the impression of business as usual. Foreign investors have cancelled their visits to Pakistan, the economy is suffering huge losses every day and the recent flash floods have also taken their toll on the treasury.
The argument of the protesters for a fundamental change of the governance model is strong and convincing; they have the pulse of the middle-class households, women and youth, as well as the ordinary man on the street whose priority is his wallet and not necessarily the need to walk through the complicated maze of politics. Their speeches are getting better every day despite repetition and are reaching out more to the public, the longer they are staying in Islamabad.
Songs and dance substituting classical police beatings and blood bath in what is seen essentially as a long and arduous struggle for change is a new dimension of the dharna. Instead of making it a dangerous place to be, the dharna has continued to provide a venue for young persons to meet and have fun while their parents watch them from home on their TV screens and some even join them for a break from the hard life of power outages and increasing prices of commodities of daily use. Reminds me of the days when as a young student in Islamabad I joined public protests against President Ayub Khan not knowing why I was saying ‘Go Ayub Go’ and without realising what were to follow after he was gone in 1969.
So far, the Government has decided to ignore the protests but this wilful neglect is seen by PTI and PAT supporters as tacit admission of guilt and denial of reality, especially against the background of the alleged self-serving democracy of the parliament and bad governance of the executive. The attitude of some of the cabinet ministers has been uncharacteristically hostile and they have not convinced the people that they retain the moral high ground to govern, even though they have the legal authority and constitutional backing to remain in power until their full term is served. Combined with this lack lustre performance is the work of government ministries and departments, including provincial governments, parastatals and loss making public corporations which has hardly anything to show as a role model of good public service. There are small exceptions of individual sacrifices and exemplary performances but these are only patches of greens in the large barren hinterland.
What Should the Government do in such circumstances -continue to ignore the dharna and let the economy bleed through its Achilles heel or let go something that resolves the crisis and still gives it the moral and legal authority to call the shots. If I were the Prime Minister who believed that the majority of the people supported his policies of making Pakistan a strong powerhouse of growth and development, I will take the high moral ground of reshuffling the cabinet and announcing fresh elections within 180 days. I would in the meanwhile revamp the election commission and appoint a capable administrator – not a retired judge as tradition dictates – to head it. In the first 90 days I will freeze postings and transfers, put a hold on all new contracts and foreign agreements and focus on elections. I will organise a national census, call local elections, mandate the election commission to update voters’ lists and assign the judiciary and parliament to look into the grievances of the dharna protesters. In the remaining 90 days I would make way for a neutral, impartial and capable caretaker administrator to make arrangements for a fair and independent election for the nation. I would focus on my party leadership and start my campaign in full swing when all other political parties do the same. In 180 days the nation will know who is a genuine leader and who is politicking. But before I do that, I need to have confidence in me that I am a leader and not a follower. I would show the nation that I lead my party and my supporters from the front instead of being led by my advisers and cabinet colleagues, even though taking decisions by consensus is usually a good thing. But leadership in political cul-de-sacs demands leading on time and from the top.
Syed Sharfuddin
London: 28 September 2014

Some countries with whom Pakistan has close political and economic ties and two inter-governmental bodies (the EU and the Commonwealth) have issued public statements on the present political situation in Pakistan. The Parliament and its representative parties are supporting the PML-N government of Mian Nawaz Sharif on the one hand, and on the other hand are two smaller parties which have brought people power to Islamabad in thousands who are now displaying their prowess in front of the sensitive institutions in Islamabad for over a week.

These overseas statements range from standard diplomatic expressions of concern to clear messages of advice and caution aimed at certain quarters. They all, however, stress one point that the issues must be resolved politically and peacefully without giving any room to the military to repeat the events of 1999 when the elected government of PM Nawaz Sharif was removed by General Musharraf on charges of bad governance. Statements from political parties and civil society within Pakistan bear the same headlines and contents with varying degrees and local flavours.

The arguments advanced by both sides of the political divide are clear and make sense when seen in the context of good democratic governance. But what will happen next and how this deadlock will be resolved is still an open question. The two protesting parties (PTI which has representation in the National Assembly and governs one province – KPK) & PAT (which has no presence in parliament but is led by a motivational preacher cum scholar) allege that it is their constitutional right to stage protests and demand PM’s resignation. Their main argument in support of their demand is that the last elections were massively irregular or rigged and all doors available to them in the system which they have been knocking have remain closed without any response. One of the two protesting parties (PAT) goes further than this demand – it is asking for a complete overhaul of the electoral system, full implementation of Constitution in regard to State responsibilities, review of the rules of business of the Executive and devolution of the Judiciary down to village level to make justice available at the doorsteps of the common man. Together, they have around 50,000 protesters comprising families, women and children who are staging sit-in in front of Parliament since last week. Even though the figure of protesters fluctuates in day and night time and many take breaks to sleep at home and freshen up, the presence of so many people in the open grounds of Islamabad’s most sensitive roads in close proximity to the cordoned off diplomatic enclave poses a serious security risk for all. Violence cannot be ruled out because the speeches have been fire brand and full of emotion which can cause a mass surge on PM House and adjoining government buildings. A police crack-down on the protesters is also possible from the government to end the sit-in and disperse crowds. Better police management and patience and flexibility on both sides have helped keep peace but there have also been tense moments. Last but not the least there is the threat of a terrorist attack by Taliban to take advantage of the situation and force the army to take over the government. Their aim will be to engage the army on many fronts and weaken its hold on the ongoing military Zarbe Azb operation currently under-way in the tribal areas of Pakistan which have provided safe havens to the terrorists. Of all the options, this scenario is the worst and will invoke Pakistan’s suspension from the Commonwealth once again.

The government, on the other hand, is justified in saying that all solutions must be found through dialogue and within the Constitution and Parliament. The Parliament for now is not in favour of any mid-term election nor is it in favour of an in-house change of PM. The second largest party in Parliament, the PPP is issuing vague statements – the party supports the Constitution and parliamentary processes but it is highly critical of the way the government has mishandled the protests. The PPP will be politically strengthened if the ruling PML-N in the Centre and in the Province of Punjab (Pakistan’s largest and in many ways trend setting province) comes out bruised and weakened from the crisis or if the government of PM NS is wound up under duress, creating once again a situation where an elected PM is robbed of his 5-year electoral mandate so early in his term. Ironically, PM NS has no record of good governance to defend himself but he has the electoral mandate and the Constitution on his side. He also has the support of provincial governments and smaller political parties. The civil society is however divided on the verdict and so is the media.

The protesting marches have been fed adrenal-soaked speeches every few hours and it is very hard for the two leaders of PTI and PAT to slow down the momentum they have generated in the marches thus far. It is inconceivable that without any major political gain they will take a reverse drive to cool down on their own. One positive factor is the introduction of folk songs and home learnt dances to keep people entertained in a city which is otherwise socially infertile and entertainment starved as far as ordinary people are concerned. However, it is also a clever ploy by PTI and PAT to keep their crowds in situ, without causing significant reduction in their numbers.

Within Pakistan, there are only three forces who can defuse the crisis – the President, but everyone knows he has no political personality nor any prowess to act as a credible arbiter. The second force is the army which has learnt its lessons in the past and is guided by ground realities and external signals of disapproval and is wisely not in a hurry to intervene. The army also thinks that by bailing out PM NS from this crisis, they can expect more cooperation from PML-N government in the future. Until recently, the army has had a rocky relationship with PML-N government on the issue of General Musharraf’s trial, relations with India and launching the military operation in North Waziristan.

The third and final force is the judiciary. The CJ could have ended the protest by ordering a high-level judicial inquiry into the allegations of election fraud and given the ruling that, if proven, a mid-term election under a caretaker government will become mandatory. This has not happened because there is a serious trust deficit between the protesting parties and the government and they suspect that PM NS and his hawkish ministers will prevail upon the new commission to prevent a transparent and fair investigation. Ironically, the TORs of the commission which was requested by the government from the CJ have been drafted by the law ministry in haste without giving much thought to the larger issue and are likely to be rejected by those opposition political parties which are directly concerned with it.

Under the circumstances it makes good sense to seek external support from those inter-governmental institutions which specialise in democracy, election observation and democratic reforms. The organisation which is closest to Pakistan and has no conflict of interest whatsoever is the Commonwealth. It has a mechanism to offer Commonwealth good offices to countries which face internal conflicts arising between political parties or democratic institutions. The Commonwealth also has a built in mechanism to suspend countries which are under military rule. The Commonwealth has the ability to talk to all stakeholders as an impartial and neutral arbiter and fill in the trust deficit. The Commonwealth could make a suggestion to both sides that the commission requested by the government to investigate the vote rigging allegations could be overseen by a group of independent Commonwealth observers drawn from selected countries who will complete their work within an agreed deadline. If such a role is accepted both by the government and by other political parties, in particular PTI and PAT, the protests can end on the mutual understanding by all parties that if the commission finds a pattern of serious and persistent rigging in a large number of constituencies, the government will immediately call mid-term elections under a neutral administration. If on the other hand the commission finds that the level of irregularities is small and is consistent with what normally happens in other Commonwealth elections without any evidence of systematic fraud, then there will be no mid-tern elections and no resignations and PML-N will have a full 5-year term without further street protests.

If Commonwealth good offices are requested by the government and are accepted by the London based organisation, this will be a win-win for all because at the moment there is no one in the country who could be seen to be neutral other than the three forces which are mentioned above but each has a problem which prevents it to act decisively.

The only other alternative is use of force by either the government or the protesters which will be disastrous if there are large number of casualties either by accident or by design of the agent provocateurs, or if the army moves in as a recourse of last resort. The TTP would also want the military to get distracted and loosen its grip on the operation in North Waziristan. As Interior Minister has repeatedly said, the terrorist threat is real and imminent; it cannot be dismissed lightly.
Syed Sharfuddin
22-08-2014
The writer is a former Pakistan diplomat and a former Special Adviser at the Commonwealth Secretariat London.

The idea of holding free and fair elections under a neutral caretaker government sounds attractive for two reasons: a level playing field for all contestants and an administration which is entirely neutral safeguarding the integrity of the ballot. Both these assumptions, even though well-intentioned, have adverse implications for the future of democracy.

Appointment of a caretaker administration implies that the incumbent government does not enjoy the confidence of political parties for facilitating a free and fair election and should resign before the poll. In developed democracies, there is no concept of swearing in a caretaker government to conduct the immediately following general election. The outgoing government remains in office until such time elections have been held and a new parliament is formed, although such governments do not take policy decisions nor act in a manner that may impact on the function of the new administration.The 1973 Constitution of Pakistan envisaged a similar setup for the conduct of general elections. However, the death of General Zia in 1988 and subsequent dismissals of governments in the 1990s under Article 58-2(b) necessitated the formation of caretaker governments to oversee fresh elections. Regrettably, the elections conducted by those caretaker administrations did not result in setting any high standards which should justify the continuation of this practice. No election in Pakistan has been without controversy.

The caretaker clause in Article 224 of the Constitution, which was introduced by the military government under the LFO of 2002, allows the president and the governors in the provinces to appoint caretaker governments and cabinets without any defined parameters. The only restriction imposed is on the caretaker prime minister and the chief ministers who are not eligible to contest the immediately following election of such assemblies.

Caretaker governments are usually a feature of new democracies or countries coming out of the shadows of a civil war. Pakistan does not fall in either category. Pakistan’s democratic institutions are fairly developed and its political parties and civil society have a degree of sophistication which is comparable to that of advanced democracies.

Another difficulty with caretaker cabinets is that these are not responsible to anyone except the president or the governors in the provinces. If the president becomes controversial in an election, the credibility of the entire caretaker government is at stake.

Like other issues in democracy, elections are a process of acquiring maturity over time. If anything requires strengthening it is the power of the election commission to conduct a fair election and prevent abuse of power or authority by those not authorised to exercise it under law. It should be ensured that the army, police and the bureaucracy are placed at the disposal of the election commission.

Those cabinet ministers who intend to actively support their party candidates or those who themselves wish to contest the election should not be allowed to misuse government vehicles, property, staff and funds for the campaign. The challenge of democracy lies in accepting responsibility and following the rules; not by keeping the practitioners of democracy insulated from the reality of politics.Whatever the outcome of the popular vote, it should be respected in the true spirit of democracy and the Constitution. Even a hung parliament deserves the right to be given a chance to cobble together fragile coalitions. Democracy comes stronger with such experiences. Artificial solutions based on expediency actually harm democracy in the long run.

If a national consensus is not developed to show zero tolerance for electoral fraud and polling irregularities, and a culture of honesty and integrity is not promoted actively, a caretaker cabinet or government, howsoever neutral and honest, can do very little to reverse the systematic rigging of elections. Bangladesh offers living proof of the limitations which undermine public confidence in the caretaker government’s ability to conduct a transparent and credible election.

What is more important is a level playing field for all political parties, a state broadcaster which allocates equal time and coverage to all contestants, a community of media which sets its own codes of conduct for the coverage of election, a civil service which is completely apolitical and an election commission which is financially and administratively autonomous and enjoys the confidence of political parties and civil society.

What is also important is an electorate which is free from violence and intimidation to express its will on the day of the poll, without ghost voters lurking in the electoral rolls or stuffed ballot papers found in the boxes irrespective of whether these are transparent or opaque.

A caretaker government can never be a replacement for these important features of a free and transparent election, even if that cabinet is truly committed to its goals.

The tradition of appointing a chief election commissioner from the judiciary also needs to be reviewed. In India, the post of the chief election commissioner is regarded as an administrative position because elections require constant administrative supervision and management. The judiciary performs a highly specialised function. It interprets laws enacted by the parliament and also decides on issues of law when disputes are brought before it for a ruling.

The argument that a senior judge has the ability to interpret electoral laws better than a civil servant does not hold much ground because 90 per cent of the work of the chief election commissioner is about the management and administration of elections, and only 10 per cent is concerned with the framing of electoral laws and their interpretation. Besides, a chief election commissioner can always appoint a senior lawyer as a member of the commission, or request a court to interpret a law if there is doubt on its application in the context of elections.

An election commission which is headed by a judge of a superior court cannot substitute the court itself. Any person can challenge the decisions of the election commission before the higher judiciary. That being the case, it makes sense not to appoint the head of the election commission from the judiciary. What we need is a complete separation of powers.

The 1973 Constitution, as amended by the LFO, provides for a caretaker government to supervise the next election. It is a foregone conclusion that after the assemblies are dissolved on completion of their term in November, the present government would leave office and a new caretaker administration would be formed.

In ideal circumstances, this should not be the case. Article 224 deserves to be rewritten to recapture the spirit of the 1973 Constitution. This would be yet another step towards restoring full democracy in Pakistan.

This article was published by the author in the daily Dawn on 22 October 2007. http://m.dawn.com/news/1070581/dawn-opinion-october-22-2007

Compared to other democracies, Pakistan has never been a shining star in upholding the principle of the independence of the judiciary. The reasons for this underperformance are similar to those found in many developing countries and include poverty, backwardness and lack of trained and qualified judges to impart justice to large sections of the population. Those who lose out on justice are mostly women and other vulnerable social groups.

Despite recent efforts to improve the image of the judiciary in Pakistan, thousands of cases are pending in courts. However, the biggest and foremost reason for the judiciary’s poor performance is the constant interference by the executive in the affairs of the judiciary.

This interference started early in the life of the country when the then president and martial law administrator required the judiciary to take a fresh oath of office swearing allegiance to the emergency provisions leading to the military takeover of the country in 1958. This was important because while the military coup eliminated two branches of government — the legislature and executive — it did not otherwise affect the judiciary. The only way the judiciary could be neutralised by a military regime was to make the senior judges subservient to the executive and prevent them from challenging the legitimacy of the coup and other extra-constitutional measures required to run the affairs of the state under military rule.

After initial resistance to the political events in 1958, the judiciary succumbed to the pressure and accepted the argument that if it did not compromise with the situation, military courts would replace civilian courts in all spheres of the judiciary. In order to continue their jurisdiction over criminal and civilian matters without questioning the politics of the day, the judiciary decided to go along with the requirement of taking an oath of allegiance to the military dictator.

The judiciary’s validation of the coup which was applied in the State v Dosso case in 1958 was so potent that three African countries in the Commonwealth borrowed it subsequently to validate the abrogation of their constitutions by the military. Later, the Dosso reasoning was replaced by the ‘doctrine of state necessity’.

This entente cordiale between the military regimes and the judiciary proved mutually rewarding. The judiciary could continue functioning without interruption as long as it did not question the actions of the military regime. The military rulers, on the other hand, could claim that not all was taken over by them and that the courts were free to dispense justice to society without fear or favour.

Following the military overthrow of a democratically elected government in 1999 in Pakistan, the senior judiciary was again asked to take an oath of allegiance to the military chief executive. Those who dissented, like Justice Saeeduzzaman Siddiqui, had to step aside. Subsequently, the Constitution (17th amendment) act 2003, declared that all laws, rules and orders issued under the military government were deemed to have been made in accordance with the Constitution.

The country has paid a high price in terms of its image abroad as the oath of allegiance of the senior judiciary remains a big obstacle in convincing the world that Pakistan’s judiciary is truly independent of the executive. The present episode is perhaps the first time in the history of Pakistan when the judiciary seems to be exerting its independence vis-à-vis an executive which is beginning to acquire more and more powers despite the lip service paid to the theory of checks and balances.

Under the Commonwealth Latimer House principles, Pakistan is morally and politically bound to ensure and respect the separation of powers and independence of action between the three branches of government – the executive, the legislature and the judiciary.

The announcement made on behalf of the Supreme Judicial Council that the electronic and press media should be careful in discussing a matter which is ‘sub-judice’ makes matters worse for the government. In this age of the internet, the government cannot prevent foreign newspapers and TV channels from commenting on the drama which is being played out in the streets of Islamabad.

In normal circumstances, the Chief Justice, upon hearing about the charges against him from the president, should have himself announced that in view of the allegations against him, he was proceeding on leave pending the outcome of an inquiry by the Supreme Judicial Council. But the rapid action that followed Justice Iftikhar Chaudhry’s meeting with the president last Friday and his subsequent protective custody and ‘isolation’ by the security agencies led to suspicions that the government was fed up with his bold and fearless demeanour in taking suo motu notices. The chief justice had spoken about many social issues which are highly objectionable and serious in magnitude but which were never brought for legislation in parliament or if these were already covered by laws, were not fully enforced by the government.

Two recent examples of the chief justice’s suo motu notices are his ban on kite flying and expression of concern on the temporary ‘disappearance’ of people. Both actions did not go down well with the government. The Punjab government lifted the kite flying ban for two days and as a result of the death of 13 persons in unfortunate incidents is now faced with possible court cases from the affected families. The ‘disappearance’ of persons has more serious overtones because it infringes on the human rights of people.

From the point of view of the government, surprise custody of suspected individuals for questioning may be necessary to round up terrorists. It is true that Pakistan has a very important role to play in combating terrorism and that it has to show a constantly rising graph in its performance on the war on terror to keep Washington satisfied. But it is also the responsibility of the government to ensure that there is a proper balance between domestic law enforcement and human rights. All other countries of the world which have joined the war against terror have observed this balance.

Normally it is not the function of the apex court to keep issuing suo motu notices to bring about societal change. But if the Chief Justice tried to translate into action the president’s vision for a fair and just society, why should he be punished for bringing about a positive change?

It is argued that the procedure set out in clauses four, five and six of Article 209 has not been followed chronologically. Clause 5 (b) of Article 209 gives the president the authority to direct the council to inquire into the matter of misconduct but it does not give the president the power to remove or make ‘non-functional’ the concerned judge of the Supreme Court or a high court until the condition in clause 6 of Article 209 has been fully met.

The government order preventing Justice Chaudhry from performing his duties on charges of misconduct raises two fundamental questions on the application of the rule of law. The first is denial of his constitutional right to continue as Chief Justice until he is proven guilty of the charges laid against him; and the second is correctness of the composition of the body holding the inquiry against the Chief Justice in accordance with the Constitution. The present composition of the Supreme Judicial Council is without the senior-most judge of the Supreme Court after the Chief Justice.

The next senior-most judge is Justice Rana Bhagwandas. His membership of the Supreme Judicial Council is mandatory in accordance with clause 3 (a) of Article 209. Even if the president had asked the judiciary to invoke Article 209 against Justice Chaudhry, the other members of the council should have consulted Justice Bhagwandas on telephone about the date of its meeting and confirmed his participation. Sadly, this does not seem to have happened because the council met on March 13 without Justice Bhagwandas.

Although the events surrounding this interesting judicial case are not a surprise to people who have followed closely the circular email of a Supreme Court advocate, Naeem Bokhari, the action that the executive took last week was too harsh and too hasty. Stopping the Chief Justice from performing his duties with immediate effect on the basis of a letter, even if the letter contained hard facts, is not good practice.

If letters alone can form the basis of determining the fate of highly-placed people in public office, it may be recalled that last year a dozen intellectuals, former politicians and retired generals wrote an open letter to the president warning him of the dangers of continuing both as president and army chief, in the interest of the nation and for the stability, unity and consolidation of democracy in the country. The president ignored that letter, perhaps rightly so because in the affairs of the state, such letters do not mean anything.

If on the basis of the inquiry of the Supreme Judicial Council it is determined by a majority vote that Justice Chaudhry is not guilty of misconduct, can anyone imagine the embarrassment it will bring to the government? Will the president be then prepared to resign admitting an error of judgement in referring Justice Chaudhry’s case to the Supreme Judicial Council?

Moreover, if this government has taken the high moral ground that previous governments were so autocratic that they did not even spare the institution of the judiciary by forcing Sajjad Ali Shah to resign or by masterminding a physical attack on the Supreme Court, how can it defend this action which to outsiders appears similar to earlier assaults on the judiciary? The removal of the Chief Justice will clearly be seen abroad as an indication that in an election year the government wants to ensure that he is not a threat to their plans to re-elect the president in uniform and win the elections for the ruling party.

Whatever the Supreme Judicial Council decides on the reference is its constitutional duty and right. But people will be curious about the details of how the inquiry is conducted. They might also support Justice Chaudhry’s request for a public inquiry.

What is at stake is not the judicial process or the issue of transparency because there are instances where inquiries have been held in camera. What is important is that the Council also looks at the record of Justice Chaudhry’s professional performance. How much harm or good have his judicial verdicts and suo motu notices brought to the country? How far has he been instrumental in restoring the independence of the judiciary? Has he inspired his juniors in the profession to be bold and fearless in dispensing justice for the public good?

After all, none of us can claim to be a saint. If Justice Chaudhry has any vanity or personal flaws, did these come in the way of him being a responsible, bold and fair Chief Justice? Judging from the public enthusiasm and media commentaries that this case has generated, it is indeed a golden opportunity for the judiciary to set the direction of its future which the infamous Dosso case turned away from nearly half a century ago.

This article was published by the author in the daily Dawn of Pakistan on 15 March 2007. www.dawn.com/news/1069923/dawn-opinion-march-15-2007

Military regimes are quintessentially patriotic and unforgiving on the question of national ideology. While they mean well for their country, their understanding of the complex political issues is always limited and their record of performance often falls short of declarations.

Military regimes see democracy as a means of managing political turbulence, and not as an organic institution addressing the needs of a sustainable pluralistic society. They associate themselves with the stability and strength of the state in the fashion of l’état c’est moi. Any criticism of the military regime is seen not as an audit of the government but as an attack on the state itself.

Under military rule, the state is both too strong and too weak. A military regime continuously tries to make the state stronger. The regime also has an insatiable appetite to control and improve governance. It tries to collect more taxes, clamps hard on dissent and uses force to resolve intricate political issues. States under military regimes are inherently weak because they lack a genuine functioning democracy.

The history of military rule in Pakistan is, however, not as gloomy as often painted. In its 60 years of independence, four of Pakistan’s presidents came while serving in the army. Compared to this period, Nigeria has had more coups than Pakistan and none of its military rulers did as much for the country’s economic development as the generals in Pakistan. In Argentina during 1930 to 1983 (a total of 53 years) 14 military presidents governed the country. It is not unrealistic, therefore, to expect that Pakistan will eventually move to a civilian democratic rule without military interference.

The question arises about how to find an exit strategy for a military regime, irrespective of whether it is directly involved in politics or is using proxy parties to leave political power to a successor regime which is genuinely democratic.

The first is the scenario of a military regime going to war with another country and facing defeat, including foreign occupation. This happened in Japan after the Second World War; in Pakistan after the emergence of Bangladesh; in Greece in 1974 when to safeguard the institutional unity and prestige of the army, a faction of the senior military officers overthrew the losing junta and handed over power to a civilian caretaker government; and in Argentina where a similar defeat at the hands of the British in the Falklands war led to elections and a change of guard in 1983.

The second is the scenario of a military regime being so corrupt that even the country’s armed forces feel embarrassed about it and withdraw from power when an opportunity presents itself for change. This is precisely what happened in Nigeria when after the sudden death of General Sani Abacha in 1998, his successor, General Abdul Salami Abubakar, organised free and transparent elections in Nigeria within one year of his presidency and transferred power to an elected president.

The problem with this scenario is that not all military regimes are corrupt. In fact some are cleaner and far more responsible than the democratic administrations they replaced. General Mobutu’s notorious and incompetent reign brought as much tragedy to the former Zaire as has President Mugabe’s misrule to Zimbabwe. Ironically, Mugabe has won successive elections in his country and is not a commissioned military officer, even though he fought the war of Zimbabwe’s independence in the trenches as a comrade.

The general dissatisfaction of people against inefficiency and bad governance by an elected government in Fiji led to a military takeover in 2006 which could well have been avoided if the warning signs were read and addressed in time by the civilian government. It was also the same story that led to the 1999 coup in Pakistan.

Another scenario in the exit strategy is free and transparent elections in which the military agrees to give up power if the parties that support the regime lose the election. In doing so, the outgoing military regimes ensure that legal formalities are completed before their departure to deprive the successor democratic governments of a chance to question the laws and ordinances promulgated during military rule. This scenario applied to Uganda and Chile in the 1980s, and to Pakistan in 2003 when parliament incorporated a major portion of the Legal Framework Order in the 1973 Constitution under the Seventeenth Amendment.Sometimes a military regime may hold elections but in the aftermath of the results not being to its liking, bar the winning party from taking power. This was witnessed in the Burmese elections in 1990. In 1992, the Algerian military invalidated the first democratic elections because the party that won the majority was not ‘kosher’ by the army’s standards.

This volte-face results in weak democracies where the army is not reconciled fully to an entrenched democratic process.

There are examples of countries which had a weak tradition of democracy, such as South Korea and Taiwan, going to elections with military-backed parties and retaining power through free elections.

In this process, the military-backed parties subsequently went through political renewal and became considerably independent over time having a civilian leader, as in Taiwan. After two successive elections, the military-backed parties ultimately lost the majority in these countries and the military accepted the verdict of the people in a democratic process they could not control.

Another scenario that is not entirely democratic but allows the military to leave politics in return for a limited institutional role in the governance structure is made possible through a constitutional arrangement assuring the military a number of seats in the legislature.

The Ugandan constitution, for instance, allows the army to send a fixed number of officers to parliament under a reserved quota for the armed forces.

Pakistan has also sought to give the military an institutional role in politics through the introduction of the National Security Council which includes on its membership the chiefs of the three armed forces as well as the chairman of Joint Chiefs of Staff committee. Although the NSC is a forum for consultation, it is regarded by the opposition political parties as an unnecessary extension of the parliamentary process.

In countries coming out from the shadow of military rule, the transition to democracy takes place in two phases. In the first phase, multi-party elections result in the formation of civilian governments. These governments either retain an allegiance to their military predecessors or exhibit signs of authoritarianism which they experienced in their political struggle under the military regime.

Sometimes in the first phase of democracy a handful of powerful people exercise control over the political process and economic decision-making in the form of an oligarchy.

Democracy’s second phase is about recognising the political division of labour and respecting professional and institutional specialisations. The more specialised a body politic, the greater chances there are for it to become a stronger democracy.Specialisations lead to checks and balances. These include separation of powers between the three branches of government; separation of religion and state in all spheres of political, economic and social activity; separation of civil society from government; separation of elected representatives in the legislature and the executive from the partisans of those bodies who elect or replace them; separation of responsibilities and functions between the national government and local governments; and separation of facts from values and the vision a country has for its future.

These separations are also sometimes referred to as functional competencies. Under this arrangement, national parliaments delegate more powers to expert administrative bodies in the areas of their competence, but with due public oversight and a strict accountability regime. The acquiescence by parliament gives these bodies sufficient democratic legitimacy to function independently.

Applying this principle to new democracies, especially those in the first stage of transition, one can build a model of democracy where parliament can entrust the armed forces with certain nation-building tasks where they have a comparative advantage over the civilian sector; i.e. building new cities, developing communications infrastructure, supporting the industrial base with R&D and filling the gaps in the security, supply and knowledge sectors in society. The military establishment can thus become an invaluable tool of development while remaining subservient to the institutions of democracy.

This article was published by the author in the daily Dawn of 12 June 2007. www.dawn.com

This briefing paper was presented by Commonwealth Human Rights Initiative (CHRI) http://www.humanrightsinitiative.org/ at the Commonwealth People’s Forum, held in parallel with the Commonwealth Heads of Government Meeting in Kampala, Uganda in 2007. It covers the first ten years of CMAG’s history.

The Commonwealth has a number of compliance mechanisms which monitor the progress of human rights and democratic governance in member countries. The Commonwealth is perhaps the only international organisation which has the mandate to publicly express concern on serious or persistent violations of democratic principles in a member country, and take appropriate measures to reverse such derogation without being accused of interfering in the internal affairs of states.

The Commonwealth’s most formal mechanism for assessing member countries’ compliance with the Harare Principles is the Commonwealth Ministerial Action Group (CMAG) which is constituted by Commonwealth Heads of Government every two years. CMAG has the power to suspend countries from the councils of the Commonwealth if circumstances require such extreme measure, without waiting for formal endorsement from Heads of Government.

CMAG also has the power to readmit a suspended member in the Commonwealth without seeking Leaders’ approval, if it is satisfied that the concerned country meets the Harare benchmarks fully.

Despite some apparent setbacks in a few countries that violated the Harare Commonwealth Principles, namely Zimbabwe, Pakistan and Fiji Islands, as well as its long engagement with The Gambia, Maldives and Cameroon for democratic and electoral reform, which is yet to bear fruit, the Commonwealth has come out stronger and consistent in implementing its rules of engagement. These mechanisms, which are broadly classified as formal and informal, can be further refined and made effective through greater co-ordination within the Commonwealth family involving the Commonwealth inter- governmental bodies, Commonwealth accredited organisations and Commonwealth civil society organisations.

The Commonwealth remains the most effective organisation for pooling resources and involving governments, NGOs and media as partners in democracy and development.

Introduction

Constitutional guarantees for individual liberty and fundamental freedoms, backed by a strong and independent judiciary are an essential feature of democratic societies. Commonwealth countries’ commitment to the fundamental political values of the Commonwealth, and in particular the Harare Commonwealth Principles, is rooted in this principle. The task of deepening democracy and institution building is not possible without taking into account the role citizens play in democratic governance and the freedoms they enjoy in exercising their rights without any unlawful restrictions imposed on them by the state, institution, group or individual.

Commonwealth Heads of Government have resolved in the Harare Commonwealth Declaration and subsequent CHOGM Declarations to abide by their commitment to democracy and the rule of law and other fundamental values. They have also agreed to place their governments under certain compliance mechanisms which are collectively administered by the Commonwealth and guide the work of the association in advancing human rights in member countries.

1. INFORMAL MECHANISMS

1.1. Role of Commonwealth Agencies and Organisations

A number of Commonwealth accredited organisations such as the CPA, CLGF and CAPAM pursue their activities in the overall context of the Harare Commonwealth Principles. Although these organisations work quietly and often in their own specialised areas, they identify and promote good practice in human rights, gender equality, democratic pluralism, decentralisation and devolution and liberal democracy.

1.2. Civil Society Networks

The Commonwealth Foundation is responsible for coordinating the activities of professional associations and civil society organisations in member countries. The Foundation’s work is supported by a number of independent Commonwealth civil society organisations which focus in specific areas, such as the CHRI in human rights, and CTUC in trade union issues.

1.3. Commonwealth Media

Commonwealth media organisations, in particular the CBA, CPU and CJA have helped to free media from government control and provided training to media personnel in member countries. Media freedom is an important component of democracy and human rights.

1.4. Commonwealth Academic Institutions and Think Tanks.

Commonwealth universities and think tanks such as the CPSU have made a valuable contribution in generating fresh ideas to constantly test the relevance of the Commonwealth in modern times. They have defined the vision of the Commonwealth as an association working to empower people, promote fundamental freedoms and create economic opportunity in a globalised world.

2. FORMAL MECHANISMS

2.1. Good Offices Work of the Commonwealth Secretary- General for conflict prevention and resolution.

At the Coolum CHOGM, Commonwealth Heads of Government reiterated their commitment to strengthening the good offices role of the Secretary-General in supporting democratic practice, resolving tensions, conflict prevention and resolution and post-conflict rebuilding.

Under present arrangements, it is not possible for CMAG to formally discuss a country where the Secretary-General’s good offices role is ongoing. CMAG can only intervene if the good offices do not resulted in any tangible progress on compliance with the Harare Principles. This places the Commonwealth Secretary-General in a sensitive position. If a period of two years could be set as the upper limit for good offices, CMAG could directly engage with these countries by placing them on its agenda after this deadline.

By its very nature, the Commonwealth good offices process for conflict resolution is unpredictable and has no end date. During this period, if the fundamental human rights

2.2. The Commonwealth Secretariat

The Commonwealth Secretariat has several programmes for deepening democracy and promoting human rights in member countries which are overseen by the Human Rights Unit and the Political Affairs Division. In addition, a number of other Divisions provide support for the Secretary General’s good offices role and assist member countries in institution building and reform.

The Commonwealth Secretariat also builds strategic partnerships with other Commonwealth bodies and institutions, as well as with regional and international organisations to coordinate its work in conflict resolution, local government reform, parliamentary good practice, election observation, human rights, gender mainstreaming and legal and constitutional reform in member countries.

2.3. Special Envoys

The Secretary-General’s good offices involve the appointment of Special Envoys who assist the process of negotiations and consensus building in times of crisis and/or serious violation of Harare Principles. Special Envoys have also been appointed when member countries request assistance for resolving internal conflict or overseeing constitutional and electoral reform. A meeting of Special Envoys was held in London in 2006 to review the Commonwealth’s ongoing work and draw up lessons from their collective experiences.

The work of the Special Envoys is not easy. It is also complicated by the fact that Special Envoys are not authorised to make any commitment on behalf of the Commonwealth for technical assistance

for capacity building or development projects. This reduces the ability of Special Envoys to press for early action.

Special Envoys are also sometimes not available on a full time basis to pursue the good offices mandate in a sustained manner.

2.4. Commonwealth Election Observers

Election observation has been a flagship of the Commonwealth’s democracy and human rights programme for over fifteen years. It has provided the basis for further engagement with member governments for technical assistance for capacity building for the electoral management body, for introducing good offices and for providing vital reports to CMAG on the basis of which the Group has sometimes suspended countries from the councils of the Commonwealth.

2.5. CHOGM and Commonwealth Ministerial Meetings

The Commonwealth has taken failing countries to task through public statements of disapproval as well as through suspension from membership if they repeatedly fall short of their commitments on democracy, human rights, rule of law and separation of powers.

The Commonwealth’s disapproval of states’ non-performance on human rights goes much further than the steps taken by any of the international organisations, including the UN. Although Commonwealth Foreign Ministers have met annually since 2002, the body that has the direct mandate from Heads of Government to act as the custodian of Commonwealth’s fundamental political values is the Commonwealth Ministerial Action Group on the Harare Declaration (CMAG).

Although Heads of Government have given CMAG full powers in regard to taking appropriate measures, including imposition or lifting of suspension, they have sometimes taken matters outside the remit of CMAG as happened in the case of Zimbabwe when they decided to set up a Troika to deal with Zimbabwe. Subsequently, the Troika was expanded and became a Committee of Six Prime Ministers to deal with the Zimbabwe issue. Generally, Heads of Government have rarely interfered with the work of CMAG and endorsed its decisions.

2.6. CHOGM Chairperson-in-Office

Since the Coolum CHOGM, CMAG has also benefited from the contribution of the Chairperson in Office, whose representative is on the membership of the Group. The Secretary-General also consults the Chairperson in Office on good offices.

The role of the Chairperson in Office between one CHOGM and another is still evolving and has not yet been defined formally. To supplement this role, the Commonwealth tried the concept of the Troika, by constituting a Committee, comprising the past, current and future Chairpersons in Office, but it was not very successful.

2.7. Commonwealth Ministerial Action Group (CMAG)

CMAG is a vital source of support and encouragement to member countries in upholding the fundamental political values of the Commonwealth as enshrined in the Harare Declaration. At the same time, CMAG acts as a ‘court’ for those countries which have persistently violated Harare Commonwealth principles or undermined democracy on the grounds that these reflect national circumstances.

CMAG has provided broad strategic direction to the Commonwealth Secretary-General for the provision of technical assistance required by member governments to help with constitutional reforms, independence of the judiciary and capacity building for effective election management bodies.

CMAG’s work is guided by two mutually reinforcing mandates. These have been endorsed by all member countries. However, these mandates do not constitute any legal instrument and do not have the force of international law. These are:

(i) Millbrook Action Plan on the Harare Declaration (1995) which set up CMAG.

(ii) Realising Millbrook (March 2002) which clarified CMAG’s mandate to cover situations of serious or persistent violations of the Harare Principles other than military overthrow of democratically elected governments.

The clarified mandate of CMAG lists ten measures that CMAG can take in its engagement with the concerned member country to persuade it to comply with the Harare Principles, or face expulsion.

(i) Consultation by the Chairman of CMAG or the Secretary- General with the government concerned;

(ii) Appointing an envoy or group of eminent Commonwealth representatives to facilitate constructive dialogue in the country concerned;

(iii) Encouraging bilateral demarches by member countries, especially those within the region, both to express disapproval and to support early adherence to the Commonwealth’s fundamental political values;

(iv) Soliciting the support and intervention of regional organisations in promoting adherence to the Commonwealth’s fundamental political values;

(v) After due consultations, the prompt public expression by the Secretary-General of the Commonwealth’s collective disapproval;

(vi) Suspending the member country concerned from the Councils of the Commonwealth;

(vii) While under suspension from the councils of the Commonwealth, a member country should not receive new Commonwealth technical assistance, other than that directed to the restoration of democracy;

(viii) Stipulating an appropriate timeframe for the re-adherence to the Commonwealth’s fundamental political values, after which CMAG could recommend that the member country concerned be fully suspended from the Commonwealth;

(ix) Other steps considered necessary to engage a member government on the need for progress or to express the collective concern of the Commonwealth;

(x) Consideration of appropriate further bilateral and multilateral measures by all member states (e.g. limitation of government- to-government contacts; people-to-people measures; trade restrictions; and, in exceptional cases, suspension from the association), to reinforce the need for change in the event that the government concerned chooses to leave the Commonwealth and/or persists in violating the principles of the Harare Commonwealth Declaration even after two years.

In circumstances of continuing serious breaches of the Commonwealth’s fundamental political values, CMAG may consider recommending to Heads of Government that the member country concerned be expelled from the Commonwealth.

Step (x) has never been applied by CMAG. Nigeria returned to democratic rule before this step was contemplated in 1997. On Pakistan, Zimbabwe and Fiji Islands, CMAG went only as far as step vii, namely suspending these countries from the Councils of the Commonwealth.

3.1. There are three distinct mechanisms which enable the Commonwealth to remain engaged with member countries in support of deepening democracy, good governance, the protection of human rights, respect for the rule of law, independence of the judiciary, transparent and inclusive parliamentary processes, freedom of expression, devolved local government and political reform.

3.2 While there is full and satisfactory coordination between A & B and growing coordination between A & C, there is hardly any coordination between B & C. Closer interaction between civil society and CMAG can build confidence of the countries under CMAG’s audit and multiply channels of assistance. It will also help build domestic capacity for monitoring compliance and release resources for work in other priority areas to link democracy with development.

3.3. The volume and division of work between A & C is balanced but the same is not the case between A & B. While there were as many as 12 countries on the good offices activity in the period following the Malta CHOGM, there were only two countries on the CMAG’s agenda in the same period. CMAG also decided in 2006 to meet in fewer regular sessions than before.

3. Assessment and Conclusions

3.1. CMAG remains the most effective multilateral body in international affairs which has the ability to suspend member countries from the association for violating democratic principles. Its ability to positively engage with countries in order to support and strengthen democratic institutions should be strengthened by enabling the Group to directly call upon other relevant Commonwealth organisations and bodies such as the Commonwealth Foundation, Commonwealth Parliamentary Association, Commonwealth Local Government Forum, Commonwealth Human Rights Initiative and Commonwealth Policy Studies Unit to provide assistance through their monitoring, awareness and capacity building workshops and other training programmes.

3.2. Throughout its work, CMAG has focused on two main issues: subordination of the military under civilian democratic institutions and strengthening the machinery and processes for transparent and free elections. CMAG has not laid sufficient emphasis on promoting liberal democracy in member countries. It has not given priority to respect for fundamental freedoms and individual liberty over all other aspects of government responsibility such as equality, social justice, democracy, stability and law and order.

3.3. CMAG has often overlooked the responsibility of governments to promote sustainable development and achieve consensus building as enshrined in the Harare Declaration and reiterated in the Millbrook Action Programme. The Group has limited its work to promoting only the fundamental political values of the Commonwealth in member countries. At the Abuja CHOGM Heads of Government declared that development and democracy are interlinked and enforce each other strongly. The Millbrook Action Programme also requires that CMAG should link sustainable development to the Commonwealth’s fundamental political values and divide its work equally in both areas.

3.4. CMAG’s mandate on the measures it can take against countries failing the Harare Principles is sufficiently detailed in the Millbrook Action Programme as well as the document ‘Realising Millbrook’. However there is no clear definition of what constitutes serious or persistent violations of the Harare Principles. Member governments have escaped CMAG’s scrutiny despite situations where elections have been postponed beyond the constitutional life of the government, where political parties have not been allowed to function freely or where fundamental human rights of citizens have been abrogated. There is an urgent need to agree on some normative criteria of the breaches of Harare Principles the existence of which should justify CMAG’s direct engagement with the concerned countries, in addition to the involvement of the Chairperson in Office and the Commonwealth Secretary-General’s good offices role.

3.5. CMAG should be encouraged to take note of the June 2006 CHRI Report on the performance of Commonwealth members on the UN Human Rights Council titled: Easier Said than Done’. There are 12 Commonwealth countries currently on the UNHRC, namely, Bangladesh, Cameroon, Canada, Ghana, India, Malaysia, Mauritius, Nigeria, Pakistan, South Africa, Sri Lanka, United Kingdom and Zambia. These countries have a greater moral obligation to fulfill their human rights commitments compared to other member countries which are not represented on the Council.

3.6. In reality, the pursuit of human rights goals by the Commonwealth has been challenging. Other than CMAG and the Commonwealth Secretary General, who represents the collective voice of governments, member countries have been reluctant to speak publicly in condemnation of the serious or persistent violations of the Harare Principles by another member country. Some do so to protect their bilateral relations; others take a broader view of developments where sometimes Harare Principles are overshadowed by other more significant geo-political considerations. There are also those who prefer to keep quiet because they expect that in the event of a similar situation arising in their countries, the others will take a similar stand and not criticise them publicly.

3.7 Another challenge is that in an increasingly globalized world where regional economic blocs are emerging more powerful than global international groupings, the Commonwealth, as an inter-governmental organisation, does not have a massive development assistance budget, political or strategic dimension or military and technological portfolio to keep its members fully committed to the association’s goals.

3.8. Taken seriously, the Commonwealth not only gives weight to the voice of small and developing states in regional economic groupings, it also works in ways that are more action oriented than being just a grouping of diverse countries.

About the author. Mr Syed Sharfuddin is a former Special Adviser for Political Affairs in the Commonwealth Secretariat, London. He was Deputy Conference Secretary of CHOGM and CMAG from 2000 to 2006. Mr Sharfuddin joined the Pakistan Foreign Service in 1977 and served in senior diplomatic positions in Washington, Harare and Dhaka before joining the Commonwealth Secretariat in 1996. Mr Sharfuddin specializes in South Asia and has written regularly on democracy and good governance.

The growing Diaspora of expatriate populations across the world and their multiple but mutually reinforcing identities and allegiances are a feature of globalisation. This is reinforced by the fact that governments in developing countries are reaching out to their respective overseas communities, especially in the rich countries, for investments and transfer of knowledge for human resource development programmes.

It is also helped by increasing multiculturalism at national and global levels. If the opportunities offered by migration are exploited positively, it can play a vital role in reducing poverty and economic vulnerability and in improving sustainable human development.

There is a need to improve the understanding and implementation of existing legal instruments on migration, supplemented by voluntary and cooperative efforts to provide capacity building, foster dialogue between host states and the countries of origin, and make migration mutually beneficial to countries and migrants.

Better indicators on measuring the impact of migration and development can provide answers to such questions as how this can contribute to reducing poverty. Managing migration means having the correct data for mitigating skills shortages in countries of origin as well as destination.

The orderly and selective management of labour markets can address the gaps between supply and demand and ultimately, dry up the existing ground for traffickers and smugglers who abuse the openings in the system for personal gain.

The relationship between migration and development is not new, certainly not for the developing countries. The history of the South Asian subcontinent as well as other parts of the world is intertwined with the movement of people; people who left their homes for education, trade, business opportunities and even to explore the world and to discover new territories. Over the years, these movements resulted in building a rich political, social and cultural heritage with a common purpose – to pursue happiness, peace and a safe future for the coming generations.

What is new in the context of migration today is the rapid pace, excess capacity and pressing impetus for global mobility. People move for a range of reasons – from the very oppressing, namely conflict, war, persecution, famine and disease to the most positive, imparting technical know-how and skills to others in response to specific requests or for the betterment of their future. Migration is both the result of a cause (positive or negative), as well as an act of voluntary choice due to social and economic circumstances.

Migration also has implications for host populations who can either benefit by allowing migrants to take up job opportunities in the services sector which is not fully exploited. Alternately, the local populations may feel threatened by seeing so many of local opportunities taken away by outsiders who are either better skilled or are willing to accept lower wages.

What is also new today is the greater possibility for gathering of information which allows systematic evaluation of the impact of migration on labour markets, remittance flows and migration networks. This can help countries to formulate effective policies to manage migration flows in a way that they make a greater contribution to global development.

A specific example of the value of migration is its ability to deal with shortages in skills in countries which are developed and abundant in natural resources. Although migrants fill this gap quickly in the host countries, they cause a shortage of skills in the countries of origin which have often invested heavily in producing technical expertise for national development, especially in the sectors of health, education and information technology. The remittances sent home by their nationals cannot replace the brain-drain caused by flight of these skilled workers to greener pastures.

Effective development is promoted not just by aid and trade in goods and services but also by expanding the exchange of experience and skills across countries and regions. Migration reflects the interdependence of the countries of the world as one of the most effective ways of promoting respect and understanding amongst communities and the elimination of causes of friction.

Selective removal of visa barriers to enable young professionals, scientists, business persons, journalists and artists to travel freely between nations is an important element of this strategy.

South Asian countries need to further expand on the existing visa waiver initiatives being negotiated under the aegis of the South Asian Association for Regional Cooperation.

Some of the benefits of international migration are exposure to globalisation through study visas and short term work permits for skills’ enhancement; internationalisation of production involving movement of labour and management; promotion of fundamental political economic and social values which are common to humanity; increase in foreign direct investments and capital flows necessary for development; and foreign exchange earnings for developing countries and Least Developed Countries (LDCs) in the form of workers’ remittances sent from abroad.

The eradication of human trafficking requires a comprehensive approach which focuses on the prevention and protection of victims and the prosecution of culprits. In 2005 the Commonwealth countries agreed to honour their obligations arising under international law and to support the full implementation of the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime. They also affirmed the principle of solidarity and burden-sharing with regard to assistance afforded to refugees and to their host communities.

An area often talked about but least implemented is the human rights of migrants. Countries have an obligation under the UN instruments and other subsequent international protocols to take measures to ensure respect for and protection of the human rights of migrants, migrant workers and members of their families. Sometimes appropriate laws exist in the statute books of receiving countries but these are rarely enforced.

There have been many case studies of exploitation of South Asian, South East Asian and Middle Eastern immigrant workers in the oil rich Gulf Cooperation Council (GCC) countries, even though their legal systems provide protection to immigrant workers against abuse of human rights.Many developing countries are reluctant to engage in a national debate on human rights in the context of international security as it puts an additional strain on their law enforcement agencies. The issue of missing persons in Pakistan is an example of the challenge human rights poses in dealing with criminals and terrorists.

The developed world, particularly the G-8 countries, have a moral obligation to translate into action the tall pledges made at various international conferences for improving the standard of life of people through free and fair trade and debt forgiveness initiatives so that people do not leave their countries of origin in search of better livelihoods elsewhere, thereby overloading the migration system in the first place.

Development assistance also needs to focus more on capacity building programmes for improving education and health sectors and strengthening other institutions of the state in order to transform societies through economic, social and human development. Development of innovative approaches for deepening inter-state cooperation can help promote the managed transfer of migrants from countries with adequate labour surplus such as those in South Asia to those facing projected labour shortages such as Europe and North America.

The debate also needs to focus on how the countries of origin that benefit from human resource development and workers’ remittances can prepare themselves to meet the shortages that are temporarily created due to the flight of human capital and absorb their skilled workers back in the countries of origin after they have returned home at the expiry of their work visas.

An important area which should form part of the policy framework on immigration and development is strategy for information management. Migration can be managed properly if there is accurate information about labour markets. Both labour and immigration authorities need to be equipped with the machinery and technical skills to be able to provide accurate figures, when required for planning and evaluation.

There is also need for each country to maintain a database of its nationals with due legal protection for its citizens for sharing of data for security reasons, and upgrade the electronic filing systems of the customs and immigration departments to be able to use this data efficiently.

These systems should be strong enough to cope with the increase of passenger traffic at all entry and exit points such as airports and seaports for business and holiday travel. Malaysia offers an example of a highly integrated information system on citizens in the form of the Malaysian national identity card.

Pakistan has also moved closer to keeping a national database of its citizens for passport purposes but is debatable whether consolidating other data such as information on tax, health records, credit details, etc., is safe and practical. It also needs to be supported by comprehensive data protection legislation and its implementation at all levels to preserve the privacy of citizens.

It is also in the interest of the US and the European Union to double their current assistance to developing countries such as Pakistan to build capacity for designing a complete and efficient immigration database of their nationals as well as maintaining the record of other incoming and outgoing persons to and from their territories for tourism, study, temporary work or other short-term stays.

This article was published by the author in the daily Dawn on 17 April 2007 www.dawn.com

A large number of countries in the world like being called democracies on the basis of holding periodic elections in the presence of international observers and on the laws that they enact through their functional cabinets or parliaments. Many also claim to be governed by the rule of law, stating that they are guided by their constitutions in keeping their social contract and taking important public decisions.
Many resources are committed by the US in developing democracy promotion strategies. However, the experience of EU accession agreements with the new applicants setting up clear targets for membership suggests that conditionality may be more effective in promoting democracy than mere incentives. There are also periodic reports which “name and shame” countries on the basis of democratic yardsticks such as political rights and civil liberties, human rights violations, corruption and on meeting international goals. What is, however, needed now is investment in resources and tools for building the architecture of democracy in countries which are democracies only in name. This is a gigantic task. The design of democracy requires that in order to be effective, several of its components should be working efficiently and in accordance with international treaties, non-binding declarations and political commitments of national leaders.
These components consist of a modern constitution; separation of powers with proper checks and balances; an independent judiciary; electoral and political processes that deliver representative and responsible government; instruments of accountability, public scrutiny and transparency; the contribution made by women in politics and conflict-resolution; the comfort level of minorities and other marginal groups in the political system; protection of human rights and freedom of assembly, belief and expression; and devolution of powers.
The weakening of any of these important components of democracy can endanger the very foundations of democracy and it would take years to restore trust and millions of dollars to rebuild institutions. Also, when elected governments become complacent and self-serving, they become corrupt and devoid of imagination to reform.
Experience suggests that the design and capacity for democratic institutions cannot be imported. The local population must be consulted fully in any reforms agenda and must own the changes before constitutions can be written or improved in a country. Afghanistan is a permanent example of why things have never gone right with this country. For most part of their history, the Afghan people remained strangers to the policies of the government in Kabul which were framed with outside consultation without involving the people in the discussions on the nature and composition of their governance.
It is, therefore, unfair to assume that Hamas, having won the elections in Palestine would behave like its counterpart right wing political party in Israel or that a monarchy like Swaziland which has welcomed democracy and adopted its first indigenous constitution limiting the powers of the king, could now be compared to a constitutional monarchy in Europe which has gone through a long democratic transition from monarchy to liberal democracy for almost a century.
Should these suspect regimes be given the benefit of doubt and room for engagement, or should they be thrown out and replaced by their western educated counterparts who have been in exile abroad, and who may be very articulate and good-intentioned, but who may not have popular support in their home countries to pursue long-term reforms?
This brings us to the point of where Muslim countries stand in regard to the western democratic model. While the former group of countries may still exhibit signs of authoritarianism, countries in the latter category are in the final stages of liberal democracy where the focus is entirely on the freedom of the individual.
A further stage in the evolution of democracy is secular democracy where the emphasis is on the separation of state from religion in all aspects of social and political issues, such as the constitution, administration, legislation, policymaking and culture.
Only two countries would find trouble with this definition; namely Pakistan and Israel because both were founded in the name of religion. Over the last 60 odd years there have been robust debates in both these countries on separating religion from politics.
The traditionalists in these countries take the view that this is tantamount to challenging their very reason for existence. Others, who are also in a majority, take a more general view and regard their independence as a result of historical forces which is no longer relevant in a modern world. The emerging social contract in both these countries today favours separation of state from religion.
Secular democracies have been very popular in pluralistic and multi-ethnic societies such as India and South Africa where unity is achieved by treating all citizens equally and keeping religion out of public discourse. In secular societies, the tyranny of the majority is balanced by the rights of the minorities protected by law and efficient justice. In this type of democracy, justice plays a central role. It guarantees a stable and just society despite divisions created by religious, philosophic and moral doctrines.
Despite its open view, secular democracy is not liberal democracy which is the next step in democracy’s higher evolution. In liberal democracies, top priority is given to individual liberty over all other human endeavours such as equality, social justice, democracy, stability and order.
Except for western democracies, many emerging democracies are not aware of what liberalism means to their societies. They have not yet faced issues such as legal protection for same-sex marriages, right to euthanasia, etc. In fact, this horizon is further expanding with political scientists talking about the state-plus vision of global democracy.
The question that is often asked is how the promotion and building of democracy can be successful in the Muslim world which has been slow to implement reforms. Many traditional Muslim countries which are now experimenting with democracy find it hard to feed the western theories of democracy to their traditional populations beyond deliberative democracy. This is because secular democracy still raises doubts in the minds of many Muslims as to its implications for their ideology and family traditions.
Irrespective of the clear definition of secularism, which is not to be confused with communism, these countries suspect that it is a way of bringing a godless culture into their lives through the backdoor.
It is also inconceivable that if some Muslim countries indeed embrace secularism as their political philosophy, such as Turkey, they would find it easy to move to liberal democracy in the next stage of their democratic evolution. What is, therefore, required is a new marker on the horizontal line of democracy’s evolution for Muslim states and its recognition by the international community as an important stage in their transition. Pakistan has called this intermediate stage “enlightened moderation”. Some others call it “decent democracy’.
Malaysia, for instance, would argue that in the Muslim world, the aim should be to replace illiberal democracies or authoritarian regimes not with secular or liberal democracies but with decent democracies where human rights, democratic and institutional reforms and constitutions correspond to the core values of the local population and sit well with the social makeup of their respective communities.
The model of decent democracy also sets aside endless debates about whether Islam is compatible with democracy or is democracy compatible with Islam. Instead of highlighting the definition of sovereignty in Islam, the linkage between political Islam and religious Islam or the limits placed on man as the creation of God, decent democracy lays emphasis on those positive aspects where there is no difference of opinion between the West and Islam.
These common values highlight developing democratic institutions and processes; good and honest governance; effective social and economic development; respect for all faiths, cultures and human rights; legal, administrative, political and structural reforms; development of free media and independent civil society; participation of women in politics, both in numbers and the quality of their input; and an active engagement with the external actors in the western world who are perceived not as enemies but as partners.
In addition to that, some way should be found to gainfully utilise the experience of very senior and experienced leaders in the Muslim world whose continuation as kings or heads of state or government may no longer be fashionable or popular in their respective countries, but who remain a valuable source of political advice, guidance and inspiration for the younger leadership.
Regrettably, apart from a few selective efforts, no global attempt has been made to tap this important resource and encourage more such leaders who do not see an active political future for themselves in their countries to retire early and play a regional and global role as mediators, special envoys and guardian angels of peace and democracy worldwide.
Perhaps the United Nations can take the first step in setting up a global institution which keeps former presidents and prime ministers occupied in lecture tours and resource-building efforts to make it worthwhile for them to retire and give democracy a chance.

PS: This article was published by the author in the daily Dawn on 25 May 2007 http://www.dawn.com

For years, democratic elections and constitutional liberalism have formed an intrinsic part of western political culture. But in many countries, although multi-party elections are becoming the norm, respect for the rule of law, separation of powers and fundamental freedoms are on the retreat. The rise of illiberal democracy is therefore a cause for concern. Today 118 of the world’s 193 countries are democracies. But in many countries, elections are neither free nor credible. In some countries the elected parliament itself imposes restrictions on the freedom of speech and assembly. According to a survey, 50 per cent of the regimes which lie between confirmed dictatorships and consolidated democracy do better on political liberties than on civil liberties. It can therefore be argued that nearly half of the countries in the world today are illiberal democracies. Seven years ago this ratio was only 22 per cent. Democracy without its essence is capable of producing inefficient, corrupt and bad governments. This is because the emphasis is placed on elections even though these may be multi-party, with greater participation by women. Constitutional liberalism, on the other hand, is not about procedures for selecting a government but rather the government’s goals. It refers to a tradition of protecting an individual’s right to life and property and freedom of religion and speech through the rule of law. The Magna Carta, the US constitution, the UN Instruments on Human Rights and the Final Helsinki Act are all expressions of constitutional liberalism. The concept of constitutional liberalism evolved differently in many parts of the world but it was perfected in the late 1940s when most western countries became full democracies. More recently, central Europe has moved successfully from communism to liberal democracy in the same way as liberalism preceded democracy in other countries in Europe in the 1990’s. In East Asia, countries have incorporated many aspects of constitutional liberalism in their political systems. However, in other parts of the world, elections have not resulted in promoting democratic liberalism. Absolute democracy can easily undermine liberty. At the same time, excessive emphasis on constitutional liberalism can lead to liberal autocracy. This imbalance has often led to tensions between the centre and local governments. Developing countries have argued for strong central powers to implement difficult and sometimes unpopular economic reforms. In contrast, countries with little centralised power and a tradition of managing pluralism have been able to progress quickly towards liberal democracy. It is commonly assumed that democracy brings ethnic harmony and peace. Neither is necessarily true. Ethnic harmony is a feature of mature liberal democracies. In fact, without liberalism, introduction of democracy can lead to ethnic conflict and civil war. Democracy introduces an element of competition; liberalism tempers it with accommodation and protection of minorities. Democratic peace has little to do with democracy. Countries with little tradition of consolidated liberalism can be hyper-nationalistic and are prepared to wage war to protect democracy. Liberalism gives democracies peace through constitutional rights, ensuring that no single leader can drag his/her country into war. It also creates economic interdependence making it costly for democracies to wage wars. There is a need to rediscover the liberal western tradition for the development of good government throughout the world. If a democracy cannot preserve liberty and laws, it is small consolation that it exists in name. Constitutional liberalism is a gradual and long-term process in which an election represents only one step. If a country holds elections, a great deal from that government is accepted without much regard to its adherence to the rule of law. Also, little effort is made to create imaginative constitutions in transitional countries in order to take them beyond electoral democracy. This must change. Governments must be measured by yardsticks relating to constitutional liberalism as well as elections. If a government is promoting economic, civil and religious liberties with limited democracy, it should be supported to do more. Today, democratic governance is not threatened by monarchies, the church or dictatorships. Its problems lie within illiberal democracy, namely erosion of liberty, abuse of power, ethnic divisions and conflict. The most useful role that the international community can play to consolidate democracy is to encourage constitutional liberalism where democracy has taken roots. One of the major considerations in recommending policy is how to respond to situations where parties and leaders that are corrupt and self-serving use money and muscle power to form governments. Should support for such elected governments be withdrawn or should there be new criteria established where other key elements of democratic governance such as commitment to human rights, the rule of law and separation of powers take priority, with elections playing only a secondary role? If there is support for such a wider agenda, there should be an international instrument which binds all countries to adhere to certain basic norms of democratic governance against which the international community could demand compliance and provide appropriate assistance. It has been argued that extremist parties and disparate groups have hijacked the democracy agenda by exploiting poverty, deprivation and external factors such as foreign occupation and economic and social injustice and won elections only to justify their actions in the name of popular support. The debate is open on whether the democracy agenda be fundamentally altered to isolate such so-called democratic governments, or should there be engagement with them to ensure that they are persuaded to preserve fundamental liberties and laws in return for economic and technical assistance. Globalisation has deepened economic interdependence and integration has created a strong pull factor for such regimes to abandon extremism and violence and embrace constitutional liberalism. Holding regular and legitimate elections has now become an accepted norm even though some countries are democracies only in name. Efforts should be made to make elected governments accountable to the people. The international community should assist countries in reviewing their constitutions and legal and electoral framework to bring them in line with liberal democratic principles and strengthen democratic institutions, including electoral commissions to make democracy irreversible. The doctrine of national circumstances has prevented many countries from accepting the fundamental values of democracy on the pretext that some of these are not compatible with their own history and culture. A major policy consideration is whether to address this issue globally and make liberal democratic principles universally accepted, overriding national circumstances. Another area where research needs to be undertaken is placing limits on the terms of office of heads of state and government. Are such limits desirable in order to encourage retirement of leaders who have abused the power of incumbency to remain indefinitely in power? There are many examples in the developing countries where such ‘elected’ leaders are still in power. In many transitional countries the performance of political parties has let down democracy. Political parties are either not mature enough or lack the courage to oppose autocratic rulers. Political parties have also not been able to develop fully because of their weak internal governance structures, as well as their inability to develop codes of good practice for elections and for dealing with other political parties. There are five key areas against which the performance of political parties can be realistically measured: 1) Political environment in which parties function and conduct their business. In many developing counties, this environment is fundamentally hostile to political parties. This affects their unity and ability to organise themselves as a formidable opposition. 2) External regulations that shape parties and party systems. Political parties are directly affected by the consequence of an imperfect constitution or its interpretation by a government which is only democratic in name but not in practice. It is also important to examine whether national laws put any restrictions on political parties such as an excessively restrictive framework for the registration of new political parties, limits on the freedom to exercise the right to assembly and free speech and what can be termed as government interference in their internal functioning. 3) Intra-party functioning. This is often the most neglected area of political parties’ work. While parties are active in the political field, they sometimes neglect to conduct internal elections and fail to devise rules and legal frameworks for the selection and removal of party leadership, candidate selection, mechanisms for dispute resolution, funding and internal audit. 4) Institutional shortcomings. Often political parties are found to be organisationally weak and heavily dependent on single leaders. Strong family connections and reliance on few sources for party funding also prevent political parties from transcending their leadership. Institutional issues involve long-term stability of political parties to command support of people which is essential for the stability of democracy. 5) Challenge of emerging new parties based on regionalism, ethnicity and egalitarianism. Established political parties face this phenomenon due to many reasons which include nationalism, rise of specific interest groups, and a desire to practise democracy locally. The performance of political parties depends on the role they play in maintaining inter-party relations and promoting pluralism and fostering peace and democracy. This also helps to form coalitions. It is possible to rebuild trust in political parties by examining a number of factors that impact on their reputation. Political parties can function independently and efficiently if the external political environment is conducive to nurturing a liberal democratic system. Political parties can be fully functional only if there is respect for the rule of law, independence of the judiciary and constitutional protection for freedom of assembly, religion and speech. Without these democratic values, political parties can only struggle to survive and at best contest elections but not deliver much in terms of substance. Effort should therefore be directed first to correct the external environment for political parties to flourish. It is also important that irrespective of the external environment, political parties raise their game by setting mechanisms for democratic functioning and observe codes of conduct for internal governance. They must play a positive role in parliament, in standing committees and during campaigns at the time of elections. A major issue regarding the performance of political parties is lack of capacity. Many opposition parties are weak because of shortage of funds and insufficient training of workers. The international community needs to support political parties by offering technical assistance on such issues as internal democracy, inter-party relations, role and responsibility of parties in government and opposition, role of money politics and code of conduct for parties during elections. Declining trust in political parties can also be measured from the low voter turnout at most elections. One way of rebuilding this trust is for parties to involve citizens in consultations at the grass-roots level. Parties should be prepared to review their policies and mechanisms by taking into account public attitudes and opinions. They also need to build their ability to communicate with voters their achievements and proposals in a positive and targeted manner.PS: This article was published by the author in the daily Dawn on 13 April 2007 http://www.dawn.com